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No bypassing of rules guaranteeing due process in the field of judicial assistance in criminal matters

In order to facilitate and expedite the exchange of information with foreign judicial authorities in criminal matters, Swiss prosecuting authorities and notably the federal prosecutor's office, in anticipation of a request for judicial assistance or upon receipt of such a request, would often initiate a domestic investigation (typically for suspected money laundering) and lodge within the frame of such domestic investigation a reciprocal request for assistance with their foreign peers, supported by information and materials relevant to the proceedings conducted by those peers. As a consequence, rules of Swiss domestic law as well as international treaty law governing the international exchange of information in penal matters are bypassed. In a recently published decision[1], the Swiss Federal Criminal Court took the opportunity to examine those methods on the example of the disclosure of certain bank records to the Brazilian authorities as exhibits to a Swiss request for international judicial assistance, the procurement and transmission of which had been applied for by the Brazilian authorities in a previous request for judicial assistance. The court qualified the conduct of the federal prosecutor as an inadmissible act of entraide sauvage ("rogue mutual aid").

Facts and legal background

The case revolves around the Petrobras corruption scandal. In 2014, the Swiss federal prosecutor opened a money laundering case to investigate the suspected collection of bribes by one of the directors of Petrobras via Swiss bank accounts. Based on confessions made by the said director in the Brazilian investigation, a further money laundering case was opened in 2015 to investigate the suspected payment of bribes from Swiss bank accounts held by companies of the Odebrecht group, a Brazilian construction company.

Already on 18 November 2014, the Brazilian authorities had lodged a request for international judicial assistance with the Swiss authorities, requiring i.a. access to the file of the Swiss money laundering investigation initiated in 2014 and the release of documents concerning Swiss bank accounts.

By a reciprocal request of 16 July 2015, the federal prosecutor in turn requested international judicial assistance from the Brazilian authorities. He applied in particular for the interrogation of the two aforementioned directors of Petrobras. Along with his letter rogatory, the federal prosecutor furnished bank records, including, among others, documentation relating to an account held by a company of the Odebrecht group (complainant), and he requested the Brazilian authorities to confront the Petrobras directors with those bank records during their deposition.

On 24 August 2015, the complainant appealed to the Federal Criminal Court. He argued that the bank records should have been released to the Brazilian authorities only upon completion, and within the boundaries, of the (passive) judicial assistance procedure pending in Switzerland in connection with the Brazilian request of 18 November 2014. The Swiss letter rogatory of 16 July 2015 constituted a mere pretext to bypass the rules of Swiss law protecting due process.

Considerations of the court

As a starting point (consid. 3.2), the court recalled that – according to art. 25 para. 2 of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) – active requests of Swiss authorities for judicial assistance were appealable in exceptional cases only: Pursuant to art. 25 para. 2 IMAC, "an appeal against a Swiss request to another State is only admissible if that State is requested to assume responsibility for the criminal proceedings or the execution of a criminal judgment"[2] . It noted however that this restriction was not pertinent in cases where a Swiss request appeared to have been made predominantly in order to frustrate, or would amount to a circumvention of, a concerned party's right to effectively defend its case (consid. 3.3). It thereby referred to a decision rendered by the Federal Supreme Court in a case where the federal prosecutor transmitted, under the cover of a request for judicial assistance, bank records to the penal authorities of a foreign state of which he knew that they would be of specific interest to those authorities.[3]

On the merits the court emphasized that the statement of facts in an active request for judicial assistance should be limited to what is necessary so as to enable the other state to answer the request (consid. 3.7). Against the background of the close links between the criminal proceedings carried out in Switzerland and Brazil, and noting that the federal prosecutor’s request included to a significant amount information and documentation which had been asked for in the Brazilian request dated 18 November 2014, it held that the Swiss request appeared to serve the purpose of furnishing, rather than obtaining, information and evidence. While recognizing that the Swiss authorities needed to disclose specific factual information to Brazil in connection with their application for assistance, including information about confidential matters such as banking relationships, it noted that the transfer of documentary evidence in support of those facts was clearly violating the principle of proportionality (consid. 5.4). The court moreover clarified that the documents at issue were protected by Swiss banking secrecy, and that Swiss laws otherwise permitting spontaneous legal assistance (assistance without previous request by the other state) could thus not serve as a justification either (consid. 4.2 and 5.5). The federal prosecutor's conduct effectively deprived the complainant of its right to be heard and rendered an ex ante review by the competent courts impossible. Thus the request for judicial assistance of 16 July 2015, pursuant to the verdict of the Federal Criminal Court (consid. 5.5), constituted a case of entraide sauvage.

The court directed the federal prosecutor to carry out post festum the procedure as required by Swiss law in matters of passive legal assistance so as to allow the complainant to exercise its procedural rights. In the event that the procedure lead to a decision affirming the admissibility of the transfer of the information and documents at issue, the entraide sauvage would be considered remedied and the Brazilian authorities could make use of the information and documents received as if those materials had been made available to them by way of an ordinary legal assistance procedure. If assistance was found inadmissible, in contrast, the Swiss authorities would have to evaluate measures to protect the rights of the complainant (consid. 6.3).

Unfortunately, the court did not express any views as to what specific measures it would consider appropriate to prevent misuse of the information and records wrongly provided by the Swiss in the Brazilian proceedings. Indeed, it is difficult to imagine that any effective measures would be available at all to achieve this.

Comments

While the Federal Criminal Court's decision uses remarkably clear language to condemn the conduct of the federal prosecutor, the remedies proposed seem to be inadequate. Through the entraide sauvage, the federal prosecutor created a situation which can hardly be remedied by way of an ex post review.

Moreover, the review should be assigned to an independent and impartial authority which is free of any appearance of bias. By requesting the same federal prosecutor who created the fait accompli in the first place to adjudicate the validity of the transfer of evidence in a subsequent assistance procedure the Federal Criminal Court asked the fox to guard the hen house.

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